IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH

Transcription

1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH PORTLAND METROPOLITAN ASSOCIATION OF REALTORS, a Domestic Nonprofit Corporation; HOME BUILDERS ASSOCIATION OF METROPOLITAN PORTLAND, a Domestic Nonprofit Corporation; BUILDING OWNERS AND MANAGERS ASSOCIATION OF OREGON, a Domestic Nonprofit Corporation; NAIOP OREGON CHAPTER, a Domestic Nonprofit Corporation; PORTLAND BUSINESS ALLIANCE, a Domestic Nonprofit Corporation; COMMERCIAL ASSOCIATION OF BROKERS OREGON/SOUTHWEST WASHINGTON, a Domestic Nonprofit Corporation; and OREGON ASSOCIATION OF REALTORS, a Domestic Nonprofit Corporation, Case No. 1CV1 PLAINTIFFS' MOTION TO VACATE JUDGMENT v. Plaintiffs, CITY OF PORTLAND, Defendant. On May 1, 01, this Court entered a combined order and judgment entitled "Order Remanding Ordinance Back to City Council for Amended Capital Improvement Plan; Judgment Denying Writ of Review on Other Grounds." Pursuant to ORCP 1, Plaintiffs hereby respectfully move that the existing judgment be vacated and that a new judgment be entered in corrected and modified form. The existing judgment does not comply with ORS 1.0, misstates the disposition of the writ, and grants improper relief. PAGE 1 PLAINTIFFS' MOTION TO VACATE JUDGMENT

2 PROCEDURAL HISTORY On May, 01, the City of Portland ("City") adopted Ordinance 0, regarding new system development charges ("SDCs") for parks and recreation. On July, 01, Plaintiffs filed a petition for writ of review under ORS.00. Plaintiffs asked the Court to review the City's approval of Ordinance 0 and determine whether, in adopting Ordinance 0, the City failed to follow the procedure applicable to the matter before it (ORS.00(b)), made a finding or order not supported by substantial evidence in the whole record (ORS.00(c)), and/or rendered a decision that was unconstitutional (ORS.00(d)). If so, Plaintiffs ask the Court to annul or reverse the City's adoption of Ordinance 0. The matter was briefed and argued to the Court. On May 1, 01, the Court signed a document entitled "Order Remanding Ordinance Back to City Council for Amended Capital Improvement Plan; Judgment Denying Writ of Review on Other Grounds." At pages 1-, the Court agrees with Plaintiffs that the City failed to follow the procedure applicable to the matter before it and made a finding or order not supported by substantial evidence in the whole record, specifically as related to the capital improvement plan ("CIP") requirement in ORS.0. On May 1, 01, that document was entered on the register as "Judgment General" with the comment "Denying Writ of Review On Other Grounds & Order." Plaintiffs now move to vacate the existing judgment and ask that the Court enter a corrected, modified judgment. ARGUMENT I. The Judgment Does Not Comply With ORS 1.0 As a preliminary matter, the document entered on May 1, 01 does not comply with ORS 1.0. A judgment document is not to be combined with the Court's opinion or order, but rather "must be separate from any other document in the action." ORS PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT

3 (). Further, a judgment document must state "in the title" whether it is a limited, general, or supplemental judgment, rather than leaving it for the clerk to decide how to enter the document on the register. ORS 1.0(1). Former ORCP 0 contained similar requirements, which were determined by the Oregon Supreme Court not to be jurisdictional with respect to appealability. See Gibson v. Benj. Franklin Fed. Say. & Loan, Or 0, Pd 0, 0 (1)(addressing "separate document" requirement). ORCP 0 was repealed in 00, however, and ORS 1.0 was enacted the same year. Since then, the Oregon appellate courts have not addressed whether non-compliance with ORS 1.0 affects jurisdiction. There is no benefit to uncertainty. The existing judgment should be vacated and a new judgment entered that complies with ORS 1.0, including separating the order from the judgment and specifying in the title if the judgment is a general judgment. II. The Judgment Misstates the Disposition of the Writ Another more serious problem with the document entered on May 1, 01 is that it misstates the disposition of the writ. ORS.00 provides that a writ of review "shall be allowed" if the City (a) exceeded its jurisdiction, (b) failed to follow the procedure applicable to the matter before it, (c) make a finding or order not supported by substantial evidence in the whole record, (d) improperly construed the applicable law, or (e) rendered a decision that is unconstitutional. If any of those five bases is satisfied, then the writ must be "allowed." ORS.00. Here, the Court ruled that, when the City adopted Ordinance 0, the City failed to follow the procedure applicable to the matter before it, as well as made a finding or order not supported by substantial evidence in the whole record. (Order/Judgment entered /1/1 at,.) Accordingly, the Court was required to "allow" the writ of review. See ORS.00 (stating that the writ "shall be allowed" if any of the five bases is satisfied). PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT Tonkon Torp LIP

4 In the document entered on May 1, 01, however, the Court never states that it is allowing the writ, in either the title or the body of the document. The only reference to "judgment" anywhere in the entire document is in the title, which states "Judgment Denying Writ of Review On Other Grounds." The trial court register states the same disposition. Thus, the document entered on May 1, 01 effectively consists of an order ruling that the standard in ORS.00 has been met and a judgment denying the writ. This is contrary to ORS.00. The writ must be either allowed or denied, and in this case it must be allowed based on the Court's ruling. The opinion or order may explain the specific reasons that the writ is being allowed, but the judgment must allow the writ. Plaintiffs recognize that this error is likely unintentional, but it nonetheless is confusing and may create jurisdictional issues for appeal or review. The existing judgment should be vacated and a new judgment entered that allows the writ of review. III. The Judgment Grants Improper Relief Finally, and most seriously of all, the document entered on May 1, 01 grants improper relief and thereby creates the potential for the City to avoid lawful review of its attempt to increase SDCs. Plaintiffs request in their petition that the Court grant the writ of review and "annul or reverse the City's adoption of Ordinance 0" pursuant to ORS.00. (Petition at 1 & p..) That is the correct relief where, as here, the City failed to follow proper procedure in adopting Ordinance 0 and made an unsubstantiated finding or order, in violation of ORS.0(1), which requires the City to prepare a valid CIP "prior to" establishing SDCs. The City's violation of ORS.0 renders its approval of Ordinance 0 on May, 01 unlawful. The only appropriate relief is to annul or reverse the City's action so that the City can start over and prepare a valid CIP "prior to" establishing any new SDCs. If the City does so, excellent. If not, then interested parties will have the opportunity to seek a writ of review under ORS.00. PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT

5 Instead, in the document entered on May 1, 01, the Court "remands the 01 CIP to the city for greater specificity in the costs, timing and percentage of costs eligible for SDCs for capital improvements needed to increase capacity." (Order/Judgment entered /1/1 at.) The title of the document refers to this as "Order Remanding Ordinance Back to City Council for Amended Capital Improvement Plan." (Id. at 1.) The document does not say that the Court is annulling or reversing the City's adoption of the SDCs in Ordinance 0 on May, 01, and the document is silent about the ordinance's upcoming July 1, 01 effective date. The result is a serious problem. Because the document entered on May 1, 01 refers to "remand" only, the City is taking the position that existing Ordinance 0 will go into effect on July 1, 01, despite the Court's ruling that it was improperly adopted without a valid CIP. It is unclear whether the Court intended that result, but in any event it is wrong. Under ORS.0(1), the City must prepare a valid CIP before establishing SDCs. The Court has ruled that the City did not prepare a valid CIP before passing Ordinance 0 on May, 01, so the adoption of the existing ordinance was unlawful and that ordinance cannot and should not go into effect. The City must start over. That is the only legally correct result, as already explained. Moreover, it is the relief requested in the petition. See ORCP C ("Every judgment shall grant the relief to which the party in whose favor it is rendered is entitled. A judgment for relief different in kind from or exceeding the amount prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered."). It also is easy for the City. As soon as the City completes what it believes to be a valid CIP to support the desired SDCs, it can vote again on the desired SDCs, and the normal writ of review procedure will apply. If Ordinance 0 improperly goes into effect on July 1, 01, then not only will the unlawfully adopted SDCs become law (which is bad enough), but it is unclear whether there will be any mechanism for review of whatever the City does on remand. A PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT

6 writ of review is the only way to challenge the City's adoption of SDCs. ORS.0()(a). Once SDCs are lawfully adopted which necessarily includes having a lawful CPI "prior to" adoption the City is free to "modify" its CPI "at any time" and only is subject to review if the proposed modification results in an SDC "increase." ORS.0(). Thus, if Ordinance 0 is improperly permitted to go into effect on July 1, 01, the City can characterize its action on remand as an "amendment" of the CPI for an existing SDC and may thereby avoid review under ORS.0(). Indeed, the existing judgment document invites this result by inaccurately referring to an "amended" CIP in the document title describing the order. (Order/Judgment entered /1/1 at 1.) An unlawfully enacted ordinance cannot be allowed to go into effect once it has been determined to have been unlawfully enacted. This is another reason to vacate the existing judgment. The new judgment should grant proper relief, specifically annulment and reversal of the City's adoption of Ordinance 0 on May, 01. CONCLUSION Plaintiffs appreciate the Court's careful review of the merits of this case. The existing judgment document entered on May 1, 01, does not properly reflect the Court's decision, however, and inadvertently creates unnecessary confusion and potential problems for further review. Plaintiffs respectfully ask that the Court vacate the document entered on May 1, 01, and enter a new judgment that complies with ORS 1.0, "allows" the writ of review, and expressly nullifies and reverses the City's approval of Ordinance 0 on May, 01. In accordance with UTCR.0, as prevailing parties, Plaintiffs are ready and willing to submit a form of judgment for the Court's consideration. Dated this day of May, 01. TONKON TORP LLP By s/ Paul Conable Paul Conable, OSB paul.conable@tonkon.com PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT

7 Direct: Steven D. Olson, OSB 00 Direct: Portland, OR 0 Attorneys for Plaintiffs PAGE PLAINTIFFS' MOTION TO VACATE JUDGMENT

8 CERTIFICATE OF SERVICE I certify that the foregoing PLAINTIFFS' MOTION TO VACATE JUDGMENT was served on the following, via and mailing, by depositing with the U.S. Mail in Portland, Oregon, enclosed in a sealed envelope with first class postage prepaid, addressed as follows: 0 /n0001 /v 1 Harry Auerbach harry.auerbach@portlandoregon.gov Chief Deputy City Attorney Portland City Attorney's Office SW th Avenue, Room 0 Portland, OR 0 Dated this day of May, 01. TONKON TORP LLP By s/ Paul Conable Paul Conable, OSB Steven D. Olson, OSB 00 Attorneys for Plaintiffs PAGE 1 CERTIFICATE OF SERVICE 0/00001/v1